State v. Cummings
| Decision Date | 12 March 1913 |
| Citation | 248 Mo. 509,154 S.W. 725 |
| Parties | STATE v. CUMMINGS. |
| Court | Missouri Supreme Court |
The term "custodian," as used in Rev. St. 1909, § 4749, making the custodian of money wagered on a horse race subject to punishment, embraces all persons who knowingly receive and hold money which the parties from whom the same is received intend shall be held pending a horse race and disbursed according to the result of the race.
In an information charging defendant as the custodian of money wagered on a horse race in violation of Rev. St. 1909, § 4749, allegations of the name of the party against whom the complaining witness made the bet, that the name of the party was unknown to the prosecutor, or that the horse race was to be run in Kentucky, were surplusage; it being only necessary to allege the name of the party from whom the money was received, that it was knowingly received as a bet or wager on a contest of speed between horses, and that the act was feloniously, willfully, and unlawfully done.
Where, in an information against defendant as the custodian of money bet on a horse race, it was alleged that defendant became the custodian of a bet made by the complaining witness against a party unknown to the assistant circuit attorney, the fact that such witness testified that he made the bet against defendant was not a fatal variance; defendant's witness having testified that defendant was a mere clerk in a cigar store belonging to his brother and that bets received there as was the bet in question were for the brother, whose connection with the store or the betting was not communicated to the circuit attorney.
When a defendant does not stand on his demurrer to complainant's evidence, but afterwards introduces evidence on his own behalf, and again demurs at the close of all the evidence, his first demurrer will be deemed waived and his last will be considered with reference to all the evidence in the case.
In a prosecution of defendant for becoming the custodian of money bet and wagered on a horse race, racing sheets produced by defendant, when complainant asked him to take the bet, on which it appeared that complainant registered a bet on a horse that was scheduled to run in a race in Louisville on that day, were admissible as res gestæ to establish the fact that a horse race was scheduled or advertised to take place in Kentucky, on which complainant made his bet.
Where a racing sheet introduced in evidence in a prosecution for becoming the custodian of money bet and wagered on a horse race showed that the races on which the money was bet were to take place at Louisville, the court will take judicial notice that Louisville, Ky., which is a commercial center, was the place referred to, under the rule that a state court will take judicial notice of the location of cities outside the state which are well known commercial centers.
In a prosecution for becoming the custodian of money wagered on a horse race, in violation of Rev. St. 1909, § 4749, an allegation in the information that certain odds were laid or to be laid on the relative speed and power of endurance of the horse on which complainant bet was surplusage and did not need to be proved.
Appeal from St. Louis Circuit Court; James E. Withrow, Judge.
Joseph Cummings was convicted of becoming the custodian of money bet and wagered on a horse race, and he appeals. Affirmed.
Defendant was convicted of violating section 4749, R. S. 1909, by becoming the custodian of money bet and wagered upon a horse race, and appeals from a judgment of the circuit court of St. Louis city fixing his punishment at a fine of $500. The information upon which defendant was convicted also contained a count charging him with registering a bet; but, as he was not convicted on that count, it will be disregarded on this appeal.
The evidence for the state tends to prove that William J. Breen, a police officer of the city of St. Louis detailed to the gambling squad, went into a cigar store on Pine street, in said city, on October 12, 1911, and found defendant standing behind the counter. Said policeman asked if he could make a bet on a horse race. Defendant replied in the affirmative and handed witness a "form sheet" showing a race scheduled to take place at Louisville on that day as a test of speed between eight horses. Among the number was a horse named Cherryola. Witness picked the horse Cherryola to win and gave defendant $2 as a bet on that horse in a race to take place at Louisville on that day. Immediately after the bet was made, other officers arrested defendant and took from him the "racing form sheet" and the $2. The money was marked and identified as the currency which witness Breen had delivered to defendant as a bet that the horse Cherryola would win. Witness Breen further testified that the bet was with defendant, and that there was no discussion or understanding about whether there were any odds offered in favor of or against the horse Cherryola. The policeman who made the arrest said to defendant: To which remark defendant replied: The "form sheet" or "racing form" found in defendant's possession, and upon which witness Breen had made a mark opposite the name of the horse Cherryola, was introduced in evidence by the state to prove that a horse race was scheduled and advertised to take place in the state of Kentucky upon which the bet was placed. Defendant was not sworn as a witness, but one Thomas Fitch, a clerk in the cigar store where defendant was arrested, gave evidence on behalf of defendant. His testimony, in substance, is to the effect that one Frank Cummings, a brother of defendant, was the proprietor of the cigar store; that bets made there were made with Frank Cummings; that defendant and witness Fitch were merely clerks of the said Frank Cummings working on a salary and not directly connected with betting on horse races, except that they received bets or memorandum thereof when Frank Cummings, the proprietor, was absent.
For reversal defendant asserts: (1) That the evidence does not prove that he was the custodian of $2 bet by witness Breen. (2) That as the information charges that witness Breen made a bet against a party to the circuit attorney unknown, and the evidence shows that said bet was made by Breen against defendant, there is a fatal variance between the charge and proof. (3) That there was no competent evidence that any race between Cherryola and other horses took place on October 12, 1911, in the state of Kentucky, and that the court erred in permitting the "form sheet" or "racing form" found in defendant's possession to be read to the jury.
John A. Gernez, of St. Louis, for appellant. E. W. Major, Atty. Gen., and Alez. Z. Patterson, Asst. Atty. Gen., for the State.
BROWN, P. J. (after stating the facts as above).
The defendant's learned counsel makes an ingenious argument in support of his position that the word "custodian," as used in section 4749, R. S. 1909, does not cover or embrace the act of defendant in receiving and taking into his possession money bet on a horse race. It is true that the word "custodian" is more frequently used in defining other classes of possession or control than the possession, keeping, or care that a stakeholder assumes over money which is delivered to him to be kept and disbursed under the terms of a bet or wager. But in carefully considering the language which precedes and follows the word "custodian," as it is used in section 4749, supra, we are convinced that it was the legislative intent by the use of that word in said section to designate and embrace all persons who knowingly receive and hold money which the party or parties from whom the same is received intend shall be held pending a horse race and disbursed according to the result of such horse race. There is also no reason why the word "custodian," as used in said section, should not embrace any intermediate recipient or holder of money who takes the same into his possession intending to deliver it to another person to be disbursed by such other person upon the result of a horse race, provided such recipient or intermediate holder knows at the time of receiving such money that it has been wagered on the result of a horse race. This assignment is ruled against the defendant.
The alleged variance between the information and the evidence necessitates a consideration of the information, which, after charging that the defendant feloniously, willfully, and unlawfully became the custodian of $2 received from William J. Breen, as a bet and wager upon the result of a contest of speed between horses, known as a horse race, contained the following additional recitals: "And more particularly upon the result of a trial and contest of speed and power of endurance of a certain horse known as `Cherryola' with other horses, to wit, `Stinger,' `High Private,' `Starbottle,' `Carlton G,' `Mary Davis,' `Rolla P. D.' and `Mockler,' contestants in said trial and contest, which said trial and contest of speed and power of endurance and the result therefrom was to take place thereafter, to wit, on said 12th day of October, 1911, without the state of Missouri, to wit, in the state of Kentucky, and which said bet and wager of the sum of $2 was made by said William J. Breen against a person to...
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